United States v. O'Brien

UNITED STATES OF AMERICA, Appellee,v.JANE E. O'BRIEN, Defendant, Appellant.

APPEAL
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS Hon. Nathaniel M. Gorton, U.S. District Judge

Inga
L. Parsons on brief for appellant.

Carmen
M. Ortiz, United States Attorney, and Stephen E. Frank,
Assistant United States Attorney, on brief for appellee.

Before
Lynch, Lipez, and Barron, Circuit Judges

LIPEZ,
Circuit Judge.

Jane E.
O'Brien, a professional investment adviser, engaged in a
long-running scheme to defraud several of her clients --
mostly elderly women who relied on her financial advice and
friendship -- out of their life savings. This scheme was
eventually uncovered, and she pled guilty -- in two separate
cases -- to securities fraud, investment adviser fraud, wire
fraud, and mail fraud. O'Brien now appeals her sentence
on both procedural and substantive grounds. Specifically, she
challenges the district court's imposition of a two-level
obstruction of justice enhancement and a two-level vulnerable
victim enhancement, as well as contending that the length of
her sentence was substantively unreasonable. Finding no basis
for undoing the district court's well-reasoned sentencing
decisions, we affirm.

I.
Background

We
provide here only a brief synopsis of the essential facts of
this case, reserving additional detail for the analysis that
follows. Because this appeal follows a guilty plea, we draw
the relevant facts from the plea agreement, the
change-of-plea colloquy, the undisputed portions of the
presentence investigation report ("PSR"), and the
transcript of the disposition hearing. United States v.
Rivera-González, 776 F.3d 45, 47 (1st Cir. 2015).

Over
approximately eighteen years, O'Brien -- a registered
securities broker who was employed at various times by two
large brokerage firms (Merrill Lynch and Smith Barney)
--persuaded some of her clients to withdraw money from their
brokerage accounts and give the money to her personally to
invest on their behalf. After gaining control of her
client's money, however, O'Brien did not make the
promised investments. Instead, she used her clients'
money to pay personal expenses or to repay money given to her
by other clients. To perpetuate and conceal the fraud, she
made lulling payments, forged signatures, and repeatedly lied
to her clients about the state of their investments.

In
April 2012, after one of her clients filed a complaint with
the Financial Industry Regulatory Authority, O'Brien,
through her attorney, met with an assistant United States
Attorney and disclosed that she had misappropriated funds
from one of her clients, RC.[1] During this meeting, O'Brien
also provided the government with the names of other former
clients from whom she had improperly obtained money. Two
months after this meeting, O'Brien pled guilty to one
count of securities fraud, under 15 U.S.C. § 78j(b),
based on her defrauding of RC. On May 30, 2013, O'Brien
was sentenced to thirty-three months in prison on this count.
O'Brien raises no claims of error specific to this
sentence.

While
O'Brien was in custody awaiting sentencing on the 2012
case, she was also charged in an eight-count indictment with
investment fraud, wire fraud, and mail fraud for conduct
related to three other former clients: PN, EG, and KD.
O'Brien subsequently pled guilty -- without a plea
agreement -- to all but one of the counts charged in the
indictment. At a hearing on August 6, 2015, the court
sentenced O'Brien to forty-five months of imprisonment,
to be served consecutively to the thirty-three-month term of
imprisonment from the 2012 case. Because O'Brien's
cases were aggregated for purposes of calculating the
applicable guidelines sentencing range ("GSR"), the
district court's imposition of a consecutive sentence of
forty-five months brought O'Brien's total sentence
(seventy-eight months) to the bottom end of the advisory GSR.
O'Brien timely appealed.

II.
Discussion

O'Brien
challenges the district court's imposition of two,
two-level sentencing enhancements: the first, for obstruction
of justice, under U.S.S.G. § 3C1.1; the second, a
vulnerable-victim enhancement, under U.S.S.G. §
3A1.1(b)(1). She also contends that her sentence was
substantively unreasonable. We address each argument in turn,
reviewing O'Brien's preserved claims of error under
our "multifaceted" abuse-of-discretion standard,
whereby "we apply clear error review to factual
findings, de novo review to interpretations and applications
of the guidelines, and abuse of discretion review to judgment
calls." United States v. Cox, 851 F.3d 113, 119
(1st Cir. 2017) (quoting United States v.
Nieves-Mercado, 847 F.3d 37, 42 (1st Cir. 2017)).

A.
Obstruction of Justice Enhancement

Under
U.S.S.G. § 3C1.1, a defendant's offense level is
increased by two levels if "(1) the defendant willfully
obstructed or impeded, or attempted to obstruct or impede,
the administration of justice with respect to the
investigation, prosecution, or sentencing of the instant
offense of conviction, and (2) the obstructive conduct
related to (A) the defendant's offense of conviction and
any relevant conduct; or (B) a closely related offense."
Covered conduct includes, among other things,
"threatening, intimidating, or otherwise unlawfully
influencing a . . . witness . . . or attempting to do
so." Id. cmt. n.4(A).

The
conduct that led to this enhancement involved payments
O'Brien made or promised to make to some victims during
the government's investigation of her crimes, as well as
related conversations O'Brien had with an attorney for
one of her victims. Specifically, between April and June
2013, O'Brien -- who was in prison at the time, having
been remanded pending sentencing in the 2012 case for
violating her release conditions -- directed her brother to
make payments to PN and EG. From prison, O'Brien also had
several phone calls with PN's attorney, Michael Faherty,
in which she tried to convince Faherty that the money given
to her by PN was a series of ...

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